Dismissal – Unfair, Wrongful or Constructive Dismissal

A dismissal is an unfair dismissal when you terminate an employees contract for a reason which is considered unfair by law, or if you acted unreasonably during the dismissal process.

A dismissal is a wrongful dismissal when you do not follow the correct dismissal procedure or break contractual terms during the dismissal process.

A dismissal is constructive dismissal when an employee resigns in circumstances where they’re entitled to do so because of the way you, the employer, has acted.

Unfair dismissal

There are many different reasons why a dismissal would be considered automatically unfair. The list of unfair dismissal reasons below is not an exhaustive list, but give examples of common reasons why dismissals are cited as unfair dismissals.

Dismissal on grounds of race, gender or disability.

Dismissal for taking or seeking to take maternity leave, paternity leave, adoption leave, parental leave or time off for dependants.

Dismissal for requesting flexible working arrangements.

Dismissal for reasons relating to the Working Time Regulations 1998 or the national minimum wage.

Dismissal because of an employees trade union membership, activities or proposed use of trade union services.

Dismissal for performing any duties relevant to their role as an employee occupational pension scheme trustee.

Dismissal for taking or proposing to take certain specified types of action on health and safety grounds.

Dismissal on grounds relating to: the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

Disability and unfair dismissal

It is not wrong to dismiss a disabled person as long as the grounds for dismissal are unrelated to the disability.

To dismiss a disabled person for serious negligence is reasonable.

To dismiss a disabled person for slow productivity caused by their disability is not allowed. This is always the case, no matter when the disability became evident/occurred.

The situation is more complex if a disability occurs which makes the employee unable to carry out their existing job at all. In this case, you should look to provide alternative work.

Wrongful dismissal

A wrongful dismissal is when you do not follow the correct dismissal procedure or break contractual terms during the dismissal process. One example is dismissing an employee without giving proper notice.

Constructive dismissal

Constructive dismissal occurs where an employee resigns because you have substantially breached their employment contract. The list of constructive dismissal reasons below is not an exhaustive list, but give examples of common reasons why resignations are cited as constructive dismissals.

Resignation due to you cutting an employee’s wages without agreement.

Resignation due to you unlawfully demoting them.

Resignation due to you allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination.

Resignation due to you unfairly increasing their workload.

Resignation due to you changing the location of their workplace at short notice.

Resignation due to you making them work in dangerous conditions.

A constructive dismissal is not necessarily an unfair dismissal, but it would be difficult for you to show that an action in breach of the contract was, in fact, fair.

Research & advice

With all matters of such sensitivity, we suggest you carry out further research before making decisions; in difficult cases, contact an employment consultant or solicit or.